[Federal Register Volume 88, Number 235 (Friday, December 8, 2023)]
[Rules and Regulations]
[Pages 85467-85469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26950]


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FEDERAL MEDIATION AND CONCILIATION SERVICE

5 CFR Chapter CIII

RIN 3209-AA65


Supplemental Standards of Ethical Conduct for Employees of the 
Federal Mediation and Conciliation Service

AGENCY: Federal Mediation and Conciliation Service.

ACTION: Final rule.

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SUMMARY: The Federal Mediation and Conciliation Service (FMCS), with 
the concurrence of the Office of Government Ethics (OGE), is issuing 
this final rule for FMCS employees. This rule supplements the Standards 
of Ethical Conduct for Employees of the Executive Branch (OGE 
Standards) issued by OGE and is necessary because it addresses ethical 
issues unique to the FMCS. This rule sets forth prior approval 
requirements for certain outside employment and outside activities for 
all FMCS employees, other than special government employees.

DATES: This rule is effective January 8, 2024.

FOR FURTHER INFORMATION CONTACT: Anna Davis, Designated Agency Ethics 
Official (DAEO), General Counsel, Office of General Counsel, Federal 
Mediation and Conciliation Service, 250 E Street SW, Washington, DC 
20427; Office/Fax/Mobile 202-606-3737; [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    In July 2023, the FMCS issued a proposed rule to establish the 
Supplemental Standards of Ethical Conduct for Employees of the Federal 
Mediation and Conciliation Service (Supplemental Standards), which are 
to be codified in 5 CFR part 10300. 88 FR 45822 (July 18, 2023). The 
proposed rule provided a 30 day comment period, which ended on August 
17, 2023. The FMCS did not receive any timely and responsive comments. 
The rationale for the proposed rule, which the FMCS is now adopting as 
final, is explained in the preamble at: https://www.federalregister.gov/documents/2023/07/18/2023-15021/supplemental-standards-of-ethical-conduct-for-employees-of-the-federal-mediation-and-conciliation. For those reasons, the FMCS is, with the concurrence 
of OGE, issuing the rule as final with no substantive changes.

I. Analysis of the Regulations

    In accordance with 5 CFR 2635.803, the FMCS has determined it is 
necessary for the purpose of administering its ethics program to 
require its employees, other than special government employees, to 
obtain approval before engaging in certain outside employment and 
outside activities. The FMCS's mission is to promote labor-management 
peace and cooperation. The FMCS has a large and broad range of clients 
external to the Government. Given the volume of public and private 
sector clients, there is a greater likelihood that conflicts of 
interest, impartiality, or other concerns may arise that employees may 
not be aware of and therefore it is necessary for the FMCS to screen 
for such conflicts. The approval requirement will help to ensure that 
potential ethics conflicts of interest, impartiality, or other concerns 
are resolved before certain employees begin outside employment or 
outside activities. Requiring prior approval ensures the neutrality and 
integrity of the FMCS' services.

Section 10300.101 General

    Paragraph (a) explains that the regulation applies to all FMCS 
employees, other than special government employees, and supplements the 
OGE Standards.
    Paragraph (b) notes that employees must comply with ethics guidance 
and procedures issued by the FMCS and should contact an FMCS ethics 
official if an ethics question arises. This paragraph also includes 
cross-references to other OGE ethics related regulations.

10300.102 Definitions

    This section defines terms and phrases used throughout this 
supplemental regulation.

10300.103 Prior Approval for Outside Employment and Outside Activities

    Paragraph (a) sets forth that an employee of the FMCS, other than a 
special government employee, is required to seek prior written approval 
before engaging in certain outside employment and outside activities.
    Paragraph (b) sets out the standards and procedures for requesting 
approval to engage in certain outside employment and outside 
activities.
    Paragraph (c) sets forth the requirement for submitting a revised 
request when there is a significant change in the nature, duties or 
scope of the outside employment or activity or to the employee's 
official duties or responsibilities.
    Paragraph (d) provides that the DAEO may issue agency wide-
policies, handbooks, or other written guidance governing the submission 
of requests for approval of outside employment and activities, which 
may exempt categories of employment and activities from the prior 
approval requirement of this section based on a determination that 
employment or activities within those categories would generally be 
approved and is not likely to involve conduct

[[Page 85468]]

prohibited by statute or Federal regulation, including 5 CFR part 2635.

II. Matters of Regulatory Procedure

Administrative Procedure Act

    Under 5 U.S.C. 553(a)(2), rules relating to agency management or 
personnel are exempt from the notice and comment rulemaking 
requirements of the Administrative Procedure Act (APA). In addition, 
under 5 U.S.C. 553(b)(3)(A), notice and comment rulemaking requirements 
do not apply to rules concerning matters of agency organization, 
procedure, or practice. Given that the rule concerns matters of agency 
management or personnel, and organization, procedure, or practice, the 
notice and comment requirements of the APA do not apply here. Nor is a 
public hearing required under 45 U.S.C. 160a. The public comment period 
on the proposed rule opened on July 18, 2023, the date of its 
publication in the Federal Register, and closed on August 17, 2023. 
During this period, the FMCS did not receive any comments on the 
proposed rule.

Executive Order 12866

    This rule is not a significant rule for purposes of Executive Order 
12866 and has not been reviewed by the Office of Management and Budget.

Regulatory Flexibility Act.

    The FMCS has determined under the Regulatory Flexibility Act, 5 
U.S.C. chapter 6, that this final rule would not have a significant 
economic impact on a substantial number of small entities because it 
would primarily affect FMCS employees.

Paperwork Reduction Act.

    The Paperwork Reduction Act, 44 U.S.C. chapter 35, does not apply 
to this final rule because it does not contain any information 
collection requirements that would require the approval of the Office 
of Management and Budget.

Congressional Review Act

    The FMCS has determined that this final rule does not meet the 
definition of a rule, as defined by the Congressional Review Act, 5 
U.S.C. chapter 8, and thus does not require review by Congress.

List of Subjects in 5 CFR Part 10300

    Conflicts of interests, Government employees.


0
For the reasons set forth in the preamble, the FMCS, with the 
concurrence of OGE, amends title 5 of the Code of Federal Regulations 
by adding a new chapter CIII, consisting of part 10300, to read as 
follows:

Title 5--Administrative Personnel

CHAPTER CIII--FEDERAL MEDIATION AND CONCILIATION SERVICE

PART 10300--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES 
OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE

Sec.
10300.101 General.
10300.102 Definitions.
10300.103 Prior approval for outside employment and outside 
activities.

    Authority: 5 U.S.C. 7301, 7353; 5 U.S.C. Ch. 131 (Ethics in 
Government Act of 1978); 29 U.S.C. 172; E.O. 12674, 54 FR 15159, 3 
CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 
CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 5 CFR 2635.402(c), 5 CFR 
2635.403(a), 5 CFR 2635.502, 5 CFR 2635.604, 5 CFR 2635.802, and 5 
CFR 2635.803.


Sec.  10300.101  General.

    (a) Purpose. In accordance with 5 CFR 2635.105, the regulations in 
this part apply to employees of the Federal Mediation and Conciliation 
Service (FMCS), other than special government employees as defined in 5 
CFR 2635.102(l), and supplement the Standards of Ethical Conduct for 
Employees of the Executive Branch in 5 CFR part 2635 (Office of 
Government Ethics (OGE) Standards).
    (b) Cross-references. In addition to the standards in 5 CFR part 
2635 and this part, FMCS employees are required to comply with 
implementing guidance and procedures issued by the FMCS in accordance 
with 5 CFR 2635.105(c). FMCS employees are also subject to the 
regulations concerning executive branch financial disclosures contained 
in 5 CFR part 2634, the regulations concerning executive branch 
financial interests contained in 5 CFR part 2640, regulations 
concerning post-employment restrictions contained in 5 CFR part 2641, 
and the regulations concerning executive branch employee 
responsibilities and conduct contained in 5 CFR part 735. Employees 
should contact an FMCS ethics official if they have questions about any 
provision of this regulation or other ethics-related matters.


Sec.  10300.102  Definitions.

    For purposes of this part:
    Outside employment or activity means any form of non-Federal 
employment or business relationship, compensated or uncompensated, 
involving the provision of personal services by the employee. It 
includes, but is not limited to:
    (1) Personal services as an officer, director, employee, agent, 
attorney, consultant, contractor, general partner, trustee, teacher, 
professor, speaker, or writer.
    (2) Active participation, including voluntary participation as 
defined in 5 CFR 2635.502(b)(1)(v), with a prohibited source.
    (3) It does not include participation in the activities of a 
nonprofit charitable, religious, professional, social, fraternal, 
educational, recreational, public service, or civic organization, 
unless such activities are for compensation other than reimbursement of 
expenses; such activities involve the provision of professional 
services or advice; or the organization's activities are devoted 
substantially to matters relating to the employee's official duties as 
defined in 5 CFR 2635.807(a)(2)(i)(B) through (E).

    Note 1 to Sec.  10300.102. There is a special approval 
requirement set out in both 18 U.S.C. 203(d) and 205(e) for certain 
representational activities otherwise covered by the conflict-of-
interest restrictions on compensation and activities of employees in 
claims against and other matters affecting the Government. Thus, an 
employee who wishes to act as an agent or attorney for, or otherwise 
represent the employee's parents, spouse, child, or any person for 
whom, or any estate for which, the employee is serving as guardian, 
executor, administrator, trustee, or other personal fiduciary in 
such matters, must obtain the approval required by law of the 
government official responsible for the employee's appointment, in 
addition to the regulatory approval required in this section.

Sec.  10300.103  Prior approval for outside employment and outside 
activities.

    (a) General requirement. Before engaging in any outside employment 
or outside activity, as it is defined in Sec.  10300.102, an employee 
of the FMCS, other than a special government employee, must obtain 
written approval.
    (b) Procedure for requesting approval. The employee must first 
obtain written approval from the employee's immediate supervisor and 
then the Designated Agency Ethics Official (DAEO). If the employee does 
not obtain written approval from the employee's immediate supervisor, 
the employee may request review by the DAEO. Decisions by the DAEO are 
final and non-appealable.
    (c) Standard for approval. Approval shall be granted only upon a 
determination that the outside employment or outside activity is not 
expected to involve conduct prohibited by statute or Federal 
regulation, including 5 CFR part 2635.
    (d) Revised requests. Upon a significant change in the nature or 
scope of the outside employment or outside

[[Page 85469]]

activity or in the employee's official position with the FMCS, the 
employee must, within 7 calendar days of the change, submit a revised 
request for approval. If there are no significant changes in the nature 
or scope of the outside employment or outside activity or in the 
employee's official position with the FMCS, the employee does not need 
to reapply after the FMCS' initial approval.
    (e) Implementation guidance. The DAEO may issue instructions or 
manual issuances governing the submission of requests for approval of 
outside employment or outside activities. The instructions or manual 
issuances may exempt categories of employment and activities from the 
prior approval requirement of this section based on a determination 
that employment or activity within those categories of employment or 
activities would generally be approved and is not likely to involve 
conduct prohibited by statute or Federal regulation, including 5 CFR 
part 2635. The DAEO may include in these instructions or issuances 
examples of outside employment and activities that are permissible or 
impermissible consistent with this part and 5 CFR part 2635.

    Dated: November 28, 2023.
Anna Davis,
General Counsel & DAEO.
Shelley K. Finlayson,
Acting Director, U.S. Office of Government Ethics.
[FR Doc. 2023-26950 Filed 12-7-23; 8:45 am]
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